November 26, 2008

Thanks to LegalBlogWatch, I now know about Typealizer, which uses a "Myers Briggs" analysis to characterize blogs. I suspect that the results of these will be popping up all over the blogosphere in the next couple of days, so below you'll see the program's analysis of CalBizLit. Hmm, arrogant, impatient and insensitive. Have I heard those criticisms once or twice before?

INTP - The Thinkers

The logical and analytical type. They are especialy attuned to
difficult creative and intellectual challenges and always look for
something more complex to dig into. They are great at finding subtle
connections between things and imagine far-reaching implications.

They enjoy working with complex things using a lot of concepts and
imaginative models of reality. Since they are not very good at seeing
and understanding the needs of other people, they might come across as
arrogant, impatient and insensitive to people that need some time to
understand what they are talking about.

CalBizLit almost never blogs about unpublished decisions, because under California Rules of Court, rule 8.1115(a), they aren't citeable or otherwise authority for anything. And CalBizLit almost never blogs about lawyers and parties who stretch the limits of discrimination and other civil right laws. Here at CalBizLit, we believe these laws need vigilant and aggressive enforcement, and if a lawyer or plaintiff overreaches once in awhile, the courts are usually pretty good at slapping them down. We find that most if not all of our corporate clients agree.

However, the civil rights laws are not advanced by the sort of cynical and manipulative litigation demonstrated in Cohn v. Corinthian Colleges, et al.,(November 21, 2008, unpublished) Fourth District, G08338. And the Court's response to the case is a real breath of judicial fresh air. Plaintiff and his male friends went to an Anaheim Angels game (ok, "Los Angeles Angels of Anaheim," give me a break), clearly for the express purpose of being refused give-away tote bags during a Mothers' Day promotion. The Angels complied with Plaintiff's intentions, declining to give the premium to the three gentlemen, who were manifestly not mothers. Since checking female attendees for off-spring status as they entered a ball game was clearly not practical, the Angels took the practical step of giving the tote bags to all females 18 and over.

All persons within
the jurisdiction of this state are free and equal, and no matter what their
sex, race, color, religion, ancestry, national origin, disability, medical
condition, marital status, or sexual orientation are entitled to the full and
equal accommodations, advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.

The Court held that the Unruh act required "intentional" discrimination, and that this was not intentional discrimination:

We see no reason to inhibit the Angels’, or any other business’s, ability to bestow gifts upon its customers. Individuals are free to give to whomever they like. Gift giving is not the same as usurping rights. We therefore find the Angels’ tote bag giveaway did not violate the Unruh Act.

Taking a swipe at the plaintiff, the Court also observed:

No other fans complained about the giveaway, and Cohn’s complaint only came after he went to the game to deliberately generate his “injury.” Cohn’s complaint gathers further suspicion because Cohn, his friends, and his counsel have been involved in numerous of what have been characterized as “‘shake down’” lawsuits. (E.g., Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 178.) They proclaim themselves equal rights activists, yet repeatedly attempted to glean money from the Angels through the threat of suit. The Unruh Act is a valuable tool for protecting our citizens and remedying true injuries. We are not convinced the Angels’ tote bag giveaway was in anyway unreasonable, arbitrary, or invidious discrimination.

[T]o award attorney fees, the court must determine whether the change was achieved “‘“by threat of victory,” not “by dint of nuisance and threat of expense.”‘ [Citations.]” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 575.) We do not find the Angels’ change in policy was for any reason other than avoiding another costly and irksome lawsuit and, therefore, find an attorney fees award improper.

November 24, 2008

Regular readers (all five of you) and California practitioners by now know the Proposition 65 enforcement drill: a private-party enforcer, or "bounty hunter," uses a lead-seeking gun to find lead-containing products without warnings on a retail shelf, or buys products at retail that contain listed chemicals and no warnings. The bounty hunter sends a "sixty day notice" to the offending manufacturer, importer or other business, and then sues for injunctive relief, penalties, and, oh yes, attorneys' fees. Introduction to the subject appears here, here and here.

Although the world of Prop 65 has a certain "Through the Looking Glass" quality to it for newcomers, there is, in fact, a set of rules established by the statutes themselves, by the accompanying regulations, and by court decisions. And one of them that I have assumed for some time was confirmed by the Court of Appeal last Thursday.

One of the first questions I usually get from clients who are newcomers to the Prop 65 world is this one: "OK, so we settle with these guys, what's to keep the next bounty hunter, or the Attorney General, from bringing another case against us for the same thing?" My answer has always been that the first settlement is incorporated into a consent judgment, that the consent judgment is entered by the court only after notice to the State of California and the public via the Attorney General's web site, and that the consent judgment ought to be res judicata.

Incidentally, there are some bounty-hunters who propose settlements without consent judgments -- i.e., without any court involvement. This decision means, in my view, that settlement without a consent judgment is almost never a good idea for the defense, because a settlement without a consent judgment will not provide res judicata protection.

November 21, 2008

Tomorrow is the Cal Stanford Big Game. I've lost track of how many I've been to, but I've been going since the 1960's. Go Bears!

Here's the final seconds of the greatest one of all, 1982. Unlike many who say they were there, I really was. Directly below the video is the text of Joe Starkey's play by play.

All right, here we go with the kickoff. Harmon will probably try to squib it and he does. Ball comes loose and the Bears have to get out of bounds. Rodgers along the sideline, another one...they're still in deep trouble at midfield, they tried to do a couple of....the ball is still loose as they get it to Rodgers. They get it back to the 30, they're down to the 20...Oh, the band is out on the field!! He's gonna go into the endzone!!! He got into the endzone!! Will it count? The Bears have scored but the bands are out on the field.
There were flags all over the place. Wait and see what happens; we don't know who won the game. There are flags on the field. We have to see whether or not the flags are against Stanford or Cal. The Bears may have made some illegal laterals. It could be that it won't count. The Bears, believe it or not, took it all the way into the endzone. If the penalty is against Stanford, California would win the game. If it is not, the game is over and Stanford has won. We've heard no decision yet. Everybody is milling around on the field!!! AND THE BEARS!!! THE BEARS HAVE WON!!! THE BEARS HAVE WON!!! Oh my God, the most amazing, sensational, traumatic, heart-rending... exciting thrilling finish in the history of college football! California has won... the Big Game...over Stanford. Oh excuse me for my voice, but I have never, never seen anything like it in the history of I have ever seen any game in my life! The Bears have won it! There will be no extra point! Hold it right here, don't anybody go away....

November 20, 2008

California's private attorney general fees statute, Code of Civil Procedure section 1021.5, allows fees to lawyers bringing suit in the public interest, and sets forth the criteria for when fees will be allowed. CalBizLit did a lengthy post on this subject here. Other posts on different California attorneys' fees provisions appear here and here. And you can always learn more than you ever wanted to know on the subject at the recommended blog, California Attorneys Fees.

As discussed in the earlier 1021.5 post, the Cal Supremes adopted the catalyst theory in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, holding that a plaintiff may obtain fees even without obtaining a judgment if the "defendant changes its behavior substantially because of, and in the manner sought by, the litigation.” However, catalyst fees are only allowed when the plaintiff seeking fees reasonably attempted to settle the matter short of litigation.

Today, the Cal Supremes decided in Vasqez v. State of California (November 20, 2008) ___ Cal. 4th ____, S143710 that the bright line Graham limitation -- no fees without a prelitigation effort to settle -- applies only to catalyst cases, not cases where the plaintiff obtains a judgment. The presence or absence of a pre-litigation effort to settle is relevant to "the necessity and financial burden of private enforcement," two of the elements to be considered by the trial court in determining whether to award fees. But unlike catalyst cases, pre-litigation settlement effort is not an absolute prerequisite to obtaining fees.

Also, the Court clarified that cases that settle with stipulated or consent judgments are not catalyst cases.

There are lots of places we can go to read about the misuse and abuse of the civil justice
system, usually by attorneys representing plaintiffs in personal injury, pharma, consumer or other litigation (Overlawyered.com and its sister site PointofLaw.com come to mind right away). But businesses aren't immune from stirring up wacky litigation, either. Without comment on whether this one qualifies, CalBizLit presents for your consideration Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC v. Does 1-18, Inclusive, filed September 23 in the United States District Court for the Northern District of California.

And who are these Does 1-18? Why they are unknown individuals who "unlawfully posted false, misleading and defamatory comments regarding" the Park Merced and Larkspur Shores apartments in San Francisco and Larkspur, respectively, on www.apartmentratings.com, part of the fast-growing Web 2.0 industry of unfiltered consumer review sites (see: www.citysearch.com, www.yelp.com, or, for that matter, www.amazon.com). Whomever these Doe people were, they sure weren't very nice to Park Merced or Larkspur Shores, posting such detailed advice as "STAY FAR AWAY AND NEVER LOOK BACK," "WORST PLACE I'VE EVER LIVED,"a real dump," and "RUN RUN RUN FAR FAR AWAY."

The two plaintiffs allege that "on information and belief" the posting reviewers included persons who were not tenants, but were employees, agents, etc. of competing apartment house communities. "On information and belief." That's often lawyer language for "I got no idea whether it's true or not, but let's do some discovery and see what happens."

November 18, 2008

CalBizLit seems to be citing Beck and Hermann's Drug and Device Law Blawg an awful lot lately. Not that they need it -- I think they have approximately 100 bazillion page views to date, compared with CalBizLit's 57.

That program “shall utilize biological specimens, as appropriate, to
identify designated chemicals that are present in the bodies of
Californians.” Participation in the program is completely voluntary,
but, once a person agrees to be in the program, he or she will be
evaluated for the presence of “designated chemicals” (defined as
“chemicals known to, or strongly suspected of, adversely impacting
human health or development. . . .”). The individuals will be given the
results of their tests (presumably blood, urine or saliva), if they
ask, and “when either physiological or chemical data obtained from a
participant indicate a significant known health risk (undefined by the
statute), program staff experienced in communicating biomonitoring
results shall consult with the individual and recommend follow-up
steps, as appropriate.”

McElveen suggests that the end game here is litigation over exposure to measured chemicals, and I can't rule that out. Our Supreme Court, in Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, authorized recovery for medical monitoring, at least in some instances, even in the absence of physical injury. And so, when a chemical exposure / toxic tort plaintiff seeks damages for the future cost of medical monitoring, the jury is instructed as follows:

To recover damages for [the cost of future medical
monitoring, the plaintiff] must prove both of the following:

1. That as
a result of the toxic exposure, the need for future monitoring is reasonably
certain; and

2. That the
monitoring is reasonable.

In deciding
these issues, you should consider the following:

(a)The significance and extent of [the
plaintiff]'s exposure to the chemical(s);

(b)The toxicity of the chemical(s);

(c)The relative increase in [the plaintiff]'s
chance of getting the disease as a result of the exposure, when compared to:

(i)[his/her] chances of developing the disease had [he/ she] not been
exposed, and

(ii)the chances that members of the public at
large will develop the disease;

(d)The seriousness of the disease that may
result from the exposure; [and]

(e)The medical benefit of early detection and
diagnosis; [and]

(f)[Insert other relevant factor(s).]

[Defendant] is not
required to pay for medical monitoring that is required for reasons other than
[plaintiff]'s exposure to toxic chemicals.

[Defendant] is only
required to pay for additional or different monitoring that is required because
of the toxic exposure.]

The plaintiffs petitioned the California Supreme Court for a hearing, and it now appears the Supremes have extended their own time to address the petition until December 4. Although lawyers like to read the tea leaves from this sort of thing, the Supremes grant review after extending their own time and deny review after extending their own time. So an order extending Supreme Court time for grant or review really means one thing: that the Supreme Court has more time.

November 14, 2008

On Monday, CalBizLit posted here about Conte v. Weyeth, where the Court of Appeal last week held that Wyeth could be held liable for alleged misrepresentations in its labeling even when the plaintiff took only the generic version of the drug, not Wyeth's. I took issue with Beck and Hermann's argument that the decision "stands product liability on its head."

Well, here's a longer, more thoroughly and forcefully argued case at their Drug and Device Law, and they're starting to convince me.

But I think this all goes away at the California Supreme Court. And remember, if that Court grants a hearing, the Court of Appeal decision immediately becomes permanently unciteable.

And now, because it's Friday . . . . .

Look Out -- Off-Topic Musical Post:

With a hat tip to Andrew Sullivan, here's a mental health break with Marvin Gaye.